MODULE 14 (continued)

Primary health care-an element of the states
obligations

The Maastricht Guideline No. 6 (See Module
3) affirms that "the failure of States
to provide primary health care to those in need
may amount to a violation" of the obligation
of implementation. Consistent with the obligation
to guarantee minimum levels of subsistence to
the population (CESCR General Comment 3), WHO
also argues that "there is a health baseline
below which no individuals in any country should
find themselves."27 The Declaration of
Alma-Ata identifies primary health care (PHC)
as the key to fulfilling such an obligation,
as it is essential for the attainment of a "level
of health that will permit [all people] to lead
a socially and economically productive life"
(para. 5). PHC "constitutes the first
element of a continuing health care process"
and is described as "the central function
and main focus" of the countrys health
system and an integral part of "the overall
social and economic development of the community"
(para. 6). The declaration calls on all governments
to formulate national policies, strategies and
plans of action to guarantee PHC for all (para.
8). According to PAHO, even if PHC cannot be
the basis of a human right that can be demanded
individually, "it may be the foundation
for outlining the content of the governments
obligation."28 The Declaration of
Alma-Ata describes PHC as including at least:

Education concerning prevailing health problems
and the methods of preventing and controlling
them; promotion of food supply and proper
nutrition; an adequate supply of safe water
and basic sanitation; maternal and child health
care, including family planning; immunization
against the major infectious diseases; prevention
and control of locally endemic diseases; appropriate
treatment of common diseases and injuries;
and provision of essential drugs. (para. 8[3])

The legal authority for considering that primary
health care is an element of state obligations
can be found in article 24(2)(b) of the CRC;
article 10(2)(a) of the Protocol of San Salvador;
ILO Convention No. 169 on Indigenous Peoples,
articles 25(2) and 25(3); and the Declaration
of Alma-Ata.29 As seen above, the Declaration establishes
the major lines of a health-care system based
on primary health care. In addition, primary
health care is among the commitments in the
Program of Action from the Cairo International
Conference on Population and Development, and
the Declaration and Program of Action of the
World Summit on Social Development. In addition,
under article 12, the ICESCR has implicitly
recognized primary health care as an expression
of state obligation. In guideline 2 for the
submission of reports, states parties are asked
to state whether primary health care is part
of the countrys health policy, and if
so, to specify the measures taken in this respect.

The Right to Emergency
Medical Care
A South African Case

A case decided by the Constitutional
Court of South Africa in November 1997
(Soobramoney v. Minister of Health [Kwazulu-Natal])
dealt with the interpretation of the rights
to emergency health care and to life contained
in the South African Constitution. Soobramoney,
who was suffering from chronic renal failure,
sought dialysis treatment from a state
hospital in Durban. The hospital had been
forced to adopt a set of guidelines for
dialysis treatment because of its limited
facilities. Only those who could be treated
through dialysis had automatic access
to the treatment. The patient was suffering
from chronic renal failure and his condition
was irreversible; his life could be prolonged
by regular dialysis, but his condition
could not be treated or remedied. In addition,
patients who were suffering from chronic
renal failure and who were eligible for
a kidney transplant also had limited access
to the dialysis facilities. However, Soobramoney
was not eligible for a transplant because
of a heart condition. Thus, he did not
come within the hospital's guidelines,
and due to the hospital's limited resources
his request for treatment was turned down.

Soobramoney based his legal challenge
on two provisions of the Constitution:
section 27(3), which says "no one
may be refused emergency medical treatment,"
and section 11, which guarantees that
"everyone has the right to life."
The Constitutional Court had to decide:
Did the right to emergency medical care
include a claim to ongoing treatment of
chronic illnesses that would prolong life?
The court found that the right to emergency
medical care did not apply in this particular
situation. The plaintiff's situation was
not an emergency which called for immediate
remedial treatment, and thus it did not
come within the scope of the constitutional
provision, observed the court. As Justice
Sachs noted, the right to emergency care
provided reassurance to the public that
accident and emergency departments would
be available to deal with unforeseeable
catastrophes that could befall any person,
at any place and at any time.

There were many more patients who were
suffering from chronic renal failure than
there were dialysis machines to treat
them. In this context, the court said,
it was legitimate to adopt guidelines
to determine who should receive treatment.
It agreed that by using the dialysis machines
in accordance with the guidelines, more
patients were benefited than would be
the case if they were used to keep persons
with chronic renal failure alive. The
outcome of the treatment would also be
more beneficial, because it was being
directed at curing patients and not simply
at maintaining them in a chronically ill
condition. Even in the most advanced countries
access to life-prolonging treatment is
rationed. Providing all persons with chronic
renal failure with dialysis treatment
would make substantial inroads into the
health budget. The provincial administration
had to make difficult choices with regard
to the resources that should be spent
on health care and how they should be
spent. Where the decision was rational
and taken in good faith the Court would
not intervene. Agonizing decisions have
sometimes to be made on how a limited
budget could be stretched to benefit the
maximum number of patients, the court
said.

Health-care rights by their very nature
have to be approached from a framework
that is based on human interdependence.
Where rights are shared, an appropriate
balance needs to be struck between equally
valid entitlements and competing rights
bearers. (Soobramoney died soon after
the judgment of the Constitutional Court
was issued.)

Other elements of states obligations
under the right to health

In addition to the fundamental principle of
nondiscrimination, other important elements
of state obligation under the right to health
are:

Accessibility: The ICESCR argues, with
respect to specific groups, that the right to
physical and mental health "also implies
the right to have access to, and to benefit
from, those medical and social services . .
. which enable persons with disabilities to
become independent, prevent further disabilities
and support their social integration."30 Accessibility suggests
several areas of intervention to guarantee enjoyment
of the right-financial, geographic and cultural.

Participation: According to the Declaration
of Alma-Ata, persons have the right and duty
to participate individually and collectively
in the planning and implementation of their
own health care.31 At the
same time, the preamble to the WHO Constitution
accords fundamental importance to attaining
health. Primary health care not only requires,
but promotes, through education in health, the
participation of the community and individuals
in "the planning, organization, operation,
and monitoring"32 of the system.

Basic health care services free of charge:
The principle of free public health care is
a subject of debate. While there is no legal
rule that makes free services compulsory (as
is the case with the right to education), there
are grounds for considering that it forms part
of states obligations. The Declaration
on Social Progress and Development establishes
that one of the goals for attaining the objectives
of the declaration is "the provision of
free health services to the whole population."
CEDAW provides that free maternal and child
health services shall be available as needed
(art. 12[2]).33

War, Conflicts and
Health

"According to the UN Department
for Disarmament Affairs, there have been
around 150 armed conflicts in the third
world since 1945. Twenty million people
died and at least three times as many
were injured. UNHCR recorded 2.5 million
war refugees in 1970, 8.3 million in 1980,
and in 1997 about 15 million. If the internally
displaced are included, the total doubles.
Mortality rates during the acute rate
of displacement are up to 60 times the
expected rates.

"Over the past two or three decades,
researchers and clinicians have summarised
what they saw and heard in survivors of
extreme trauma under titles like concentration-camp-syndrome,
war neurosis, combat exhaustion syndrome,
survivor syndrome and currently post-traumatic
stress disorder (PTSD).

"War victims endure multiple traumas:
physical privation, injury, torture, incarceration,
witnessing torture or massacres and the
death of close family members. There are
also background factors, not least the
infectious diseases which flourish in
the conditions created by war and are
particularly lethal for children. In Uganda,
the AIDS virus has behaved like a terrorising
army in its own right, and war-related
social breakdown is hastening its spread.

"War or civil conflict can be devastating
for cultural and social forms. In Uganda
and Mozambique huge numbers of destitute
and terrorised peoples are haunted by
the memories of the relatives they left
unburied, and the supernatural sanctions
which will follow these lapses of mourning
and burial rituals." 35

Implementation Mechanisms

International mechanisms

Mechanisms derived from human rights treaties

The UN system has several established forums
for monitoring the right to health:

CESCR: States parties have the
obligation to submit a report once every five
years on the measures taken to implement the
right to health. The CESCR makes reference
to four main aspects to be taken into account:
the health situation, accessibility of services
and health measures, the situation of specific
sectors, and the progressive nature of the
measures and effects. The CESCRs reporting
guidelines34 refer specifically to preparation of
reports related to the right to health. In
addition to the information on general principles,
some of the most important considerations
articulated by the CESCR refer to the ratio
of public services/private sectors; situation
of the rural population; situation of women;
situation of HIV/AIDS and preventive policies;
health in prisons; drug use and abuse; and
effects of traditional health practices (with
special attention to the possible violation
of cultural rights).

States attitudes towards and methodologies
for submission of the reports vary widely.
A broad range of issues must be addressed, and
because the CESCR did not require a stricter
methodology, reports vary in quality and approach.
In addition, the use of statistical indicators
in reports poses two problems: one relates to
reliability, the other to the fact that the
failure to contextualize indicators means it
is difficult to identify causes of possible
stagnation. Scant attention is given in reports
to issues as important as mental health. Furthermore,
more reliable and "standardized" mechanisms
of design are needed to evaluate progress over
time (with respect to both the health situation
and the adoption of measures). One important
factor in the work to date of the committee
is the limited (though increasing) willingness
of WHO to participate actively before the CESCR;
to date it has submitted two reports at its
own initiative.

International Convention on the Elimination
of All Forms of Racial Discrimination:
Article 9 establishes the obligation to submit,
every two years, reports on the measures adopted
to eliminate and/or prevent racial discrimination
in the enjoyment of the rights set forth in
the ICERD, including the right to health.

CEDAW: There is an obligation to
submit a report every four years (art. 18).
Some of the areas addressed are: the health
conditions of women; reproductive health and
maternal and child care; traditional practices;
information on abortion (legal status, practices,
effects of illegality); and the status of
women with respect to HIV/AIDS.

CRC: Submission of a report is
required once every five years (art. 44).

Other mechanisms

In addition, WHO has its own mechanisms for
requiring submission of reports, as do its regional
offices. There is a certain reciprocity between
the WHO and UN systems for submitting reports,
considering the consultative status of WHO before
the UN system and the fact that WHO has undertaken
to monitor the provisions of treaties that set
forth the right to health. According to the
WHO Constitution, states parties are to submit
an annual report on the measures taken to ensure
certain levels of health to the entire population
(art. 61); an annual report on the measures
adopted to implement the WHO recommendations,
and on the application of the provisions of
the instruments that protect the right to health
that have been ratified (art. 62); the submission
of all health-related statutes, regulations,
and statistical information, especially regarding
health-related measures (art. 63); the submission
of statistical and epidemiological reports (art.
64); and the forwarding of any additional information
to the executive committee of WHO (art. 65).

Strategies for Furthering
the Right to Health
A Case Study from Venezuela

Acción Ciudadana Contra el SIDA
(ACCSI), an organization addressing issues
of HIV/AIDS and human rights in Venezuela,
has been developing a legal strategy to
make the state adopt a policy regarding
the provision of anti-viral drugs and
comprehensive drugs to HIV/AIDS patients.40
To this end, three writ petitions41 have
been brought against the Ministry of Health
before the Supreme Court of Justice (CSJ).
These petitions allege violations of the
rights to life, health, personal liberty
and security and nondiscrimination, and
of the right to benefit from science and
technology, all stemming from the systematic
failure to provide the persons bringing
the action with health care.

Some of the grounds articulated were
that the distribution of essential drugs
is one of the obligations of the state
in relation to the right to health. Access
to antiviral treatment is of vital importance,
as is the supply of medicines to combat
opportunistic diseases. The right to life
is a fundamental right, linked to the
right to health. The lack of access to
treatment violates the right to benefit
from scientific progress. Social assistance
programs, consistent with the Constitution,
should cover those who are outside the
social security system.

The first judgment of the CSJ accorded
legal recognition to the connection between
the rights to life and access to the scientific
advances and the right to health.42 It
declared that writ (amparo action) admissible
in part, affirming the violation of the
rights to the protection of health, to
life, and to scientific advances by the
entity against which the action was filed.
In addition, the right to health (by now
partly developed) is conceptualized based
on positive obligations of the state beyond
prevention and assistance. It is not sufficient
to attend to the opportunistic disease,
but the virus must be treated, drawing
on available advances, until a cure is
found. Following this line of argument,
the court ordered the Ministry of Health
to provide drugs on a regular and periodic
basis, to perform or cover the costs of
the specialized exams, to supply drugs
to treat the opportunistic diseases, and
to develop a policy of providing information,
treatment, and comprehensive medical care.

Committees of persons filing the writ
petition (amparo claims) were formed to
follow up on these judicial decisions
and have led the constitutional courts
to make a pronouncement on the same issues.
Through political pressure, these committees
have succeeded in having the judgments
implemented swiftly. In addition, they
monitor the purchases and deliveries of
the drugs, and give workshops to empower
persons who may bring such actions in
the future.

The persons affected on an individual
basis must file the writ petition (amparo
action). Where necessary their names can
be kept confidential. The ten persons
who filed the first petition remained
anonymous. Recently, the strategy has
been refined so as to file regional writ
petitions (amparo actions), to distribute
the budgetary burden and have patients
obtain their services and drugs in their
localities.

Finally, in an unprecedented decision,
the CSJ recognized the complaint on behalf
of diffuse interests. It would benefit
the entire class of persons affected by
HIV/AIDS who do not have the means to
obtain treatment. It represents an important
step towards the justiciability of ESC
rights in the Venezuelan legal order.

Domestic mechanisms

The possibility of implementing the right to
health through domestic judicial systems, either
by invoking international instruments or by
making reference to the constitution, has been
explored in a relatively large number of countries.36 In
general, the courts tend to find ways not to
base their decisions on the right to health.
There have been some positive decisions regarding
justiciability based on the constitutional recognition
of the right. In 1993, the Supreme Court of
the Philippines required that logging permits
be revoked by invoking constitutional principles
15 and 16, which set forth the rights to health
and to a healthy environment, underscoring that
ESC rights are accorded the same priority as
civil and political rights.37
The Supreme Court of India established as "an
essential part of the obligations" of the
state to provide adequate medical services,
drawing a link between the lack of adequate
emergency treatment and guaranteeing the right
to life.38 The
Constitutional Court of South Africa made reference
to this same judgment, but decided it did not
apply to the case before it, as the plaintiff
suffered from a chronic disease, and so apparently
would not apply the constitutional provision
referring to the obligation to provide emergency
assistance.39

Furthermore, the progressive nature of the
right to health requires that one explore the
mechanisms of administrative law, whose effectiveness
and methodology will depend on the specific
characteristics of the domestic order of each
state. The existence of a tiered health system
and an identifiable administrative order are
favorable to success in implementing these mechanisms.

Finally, the broad scope of protection offered
by the recurso de amparo (a special remedy
to seek an injunction of imminent state action
alleged to violate ones constitutional
rights), recognized by a large number of countries,
is a means by which the programmatic concept
of the right is giving way to a directly enforceable
right, subjective in nature (see case study
above).

Challenges and Strategies for Furthering
the Right to Health

The following are suggestions for initiatives
activists can pursue to promote the right to
health:

Intervene with supervisory organs: Take
advantage of the gradual opening of supervisory
organs (e.g., the ICESCR) to the participation
of nongovernmental actors so as to make use
of space available through existing channels.

Define the content of the right: Work towards
a more precise definition of the contents
of the right (see Module
8).

Work with WHO: Explore possible channels
for furthering the involvement of WHO with
a view to its (a) effective participation
in the system of international supervision;
(b) involvement in monitoring of local public
policies that affect observance of the right
to health; and (c) nonparticipation in reform
programs that sponsor the dismantling of the
public health structure.

Pursue legislative recognition of the right
to health: Efforts along these lines should
be focused not only on constitutional recognition,
but on all levels of regulation of health
matters, from an overall perspective as well
as with respect to protection for specific
groups (see case study, below).

Pursue litigation: Develop national and
international strategies and explore the possibili­ties
of litigating in the regional systems.

Challenge reduction of the role of the
state: In the context of economic globalization
and the "opening of markets," there
is major pressure to reduce the scope of authority
of the state and thus its obligations. These
trends are to be found in both the legislative
and ex­ecutive branches, and especially affect
social protection policies.

Encourage systematic implementation of
the right to health: The right to health requires
the various branches of government to adopt
measures for the systematic and program­matic
implementation of the structure of protection.

NOTES

29.
"[E]xpressions such as the countries
shall or the countries shall collaborate
in . . ." This verb tense reflects
the commitment voluntarily contracted by the
countries to attain the goal of health for
all by the year 2000 based on primary health
care, as spelled out in the Declaration of
Alma-Ata. In no way should this be interpreted
as imposing certain actions on the countries
by a supranational body" (WHO, Global
Strategy for Health for All by the Year 2000,
Geneva, 1981), 18

33. Referring to the accessibility
of basic health services, the UNDP affirms
that "the free supply of basic services
offers greater equality of opportunity and
addresses the responsibility of all governments
to ensure the basic human rights of their
respective citizens." (UNDP, HumanDevelopment Report 1991 (Oxford University
Press, 1991). At the same time, PAHO, when
referring to the responsibility of the state
for attaining health goals, notes that "the
state should provide free of charge the services
that benefit the country in general"
(PAHO, Apoyo económico a las estrategias
nacionales de salud para todos [Washington,
D.C., 1989], 81-82).

39.Toebes, op. cit., 229. The Constitution
of South Africa establishes that the courts
"must" take account of international
law and "may" take account of foreign
law; article 39(1)(b) and (c) of the Bill
of Rights.

40.
The first actions were focused on the Seguro
Social agency, leading to amparo
actions to win recognition of the right to
social security benefits. After several favorable
judicial decisions, Seguro Social made
a commitment to guarantee access to treatment
for all persons covered by the Seguro Social
who have HIV/AIDS.

41.
The first amparo was brought in 1998,
and the second in January 1999, with a total
of 138 moving parties. The judgment in the
third amparo, which covers 172 persons,
was recently the subject of a hearing of the
Constitutional Court.